Reply to the Constitutional Court Regarding the Lisbon Treaty

At the request of the Constitutional Court, made through Judge-Rapporteur Vojen Güttler, LL.D., and delivered to me on 9 May 2008, file No. Pl. US 19/08, regarding the petition from the Senate of the Parliament of the Czech Republic requesting an assessment of compliance of the Lisbon Treaty, amending the Treaty on the European Union and the Treaty Establishing the European Community, concluded in Lisbon on 13 December 2007 (hereafter referred to as the "Lisbon Treaty"), with the constitutional system, filed according to Article 87 (2) of the Constitution of the Czech Republic, I am presenting, within the time limit required by Article 69 (1) of Act No 182/1993 Coll. on the Constitutional Court, the following statement:

I welcome the Senate's petition and identify myself with it.

It is beyond any doubt that the Lisbon Treaty will significantly change the character of the European Union as such and, consequently, the legal status of the Czech Republic within its framework. It is therefore necessary to pay special attention to an assessment of compliance of its provisions, both individually and in their entirety, with the Constitution of the Czech Republic, the Charter of Fundamental Rights and Freedoms, and the constitutional system of the Czech Republic.

The decision of the Constitutional Court on this matter will be, and will probably remain for a long time, one of the most important and most responsible decisions in the history of the Czech constitutional judiciary.

A.
On Proceedings in General

In view of the fact that these are the first proceedings ever concerning compliance of an international treaty with the constitutional system and thus, in a way, these proceedings serve as a precedent for all following proceedings of this type, I consider it appropriate to emphasize the following tenets.

1. Character of Proceedings

The Constitutional Court is competent to assess not only the provisions of the Lisbon Treaty referred to in the Senate's petition, but also its compliance with the entire constitutional system, in all respects. In my opinion, this is precisely the purpose of proceedings concerning international treaties according to Articles 10a and 49 with the constitutional system. From the viewpoint of the proceedings, the explanation of the reasons for the petition and the statements of the participants in the proceedings only have such a legal effect that it is necessary to respond to their statements, proposals, and doubts in the explanatory part of the finding. I infer from the above that these types of proceedings have the character of incontestable proceedings.

If this interpretation were to not apply, then it would be necessary to admit that, even after a positive finding of the Constitutional Court, another possible petitioner according to Article 71a (1) (b), (c), or (d) of the Act (i.e., a group of deputies, senators, or the president of the republic) would be entitled to submit another proposal, drawing the court's attention to other provisions of the relevant international treaty or the constitutional system, which the previous petitioner did not mention. I would consider such an interpretation not only absurd, but also extremely impractical.

2. Character of Treaties According to Article 10a of the Constitution

Article 10 of the Constitution states that promulgated international treaties, whose ratification has been approved by Parliament and by which the Czech Republic is bound according to international law, form part of the Czech legal system and take precedence over [domestic] laws. Neither this nor any other provision of the Constitution distinguishes between treaties referred to in Article 10a, whose ratification must be approved by both houses of Parliament by means of a constitutional majority (Article 39 (4) of the Constitution), and treaties referred to in Article 49, whose ratification must be approved by both houses by means of a simple majority of votes (Article 39 (2) of the Constitution). It transpires from the above that, although the conditions of their ratification differ, the subsequent legal status of treaties according to Article 10a, as well as according to Article 49 of the Constitution, must be the same in the Czech legal system.

However, I consider it impossible for ordinary international agreements, as referred to in Article 49 of the Constitution, to have the power of a constitutional law or even take precedence over it. As a part of the legal system, they take precedence over the law, but they themselves are subject to the constitutional system. Then, the same must logically apply also to treaties referred to in Article 10a, such as the Lisbon Treaty and the Czech [EU] Accession Agreement. This interpretation is also confirmed by the wording of Article 112 of the Constitution.

International agreements cannot be unilaterally terminated and a withdrawal may not always be immediately possible. A subsequent review of their compliance with the Constitution would therefore be problematic (Footnote 1) ("According to the generally accepted principles . . . . the state may not contest even its own Constitution against another country in order to avoid the obligations imposed on it by international law or applicable international agreements. (From the opinion of the Permanent Court of International Justice concerning the treatment of Polish citizens in Gdansk, 1932)), which is why it is necessary to establish their compliance with the legal system beforehand. However, such proceedings would not make sense in the case of an international treaty that itself would have the power of a constitutional law. A treaty that would form part of the legal system cannot, given the substance of the matter, be in contradiction with the legal system. The moment it becomes part of it, it will implicate change it to its own image in accordance with the basic legal principle of lex posterior derogat legi priori [preceding words in italics in Latin as published]. If the Constitutional Court did not identify itself with this interpretation and adopted the standpoint that international treaties, as referred to in Article 10a of the Constitution, and other international treaties (Footnote 2) (Finding of the Constitutional Court No 403/2002 Coll.) form part of the constitutional system, then it would be appropriate for a preliminary review of compliance with the Constitution to become the rule for all international treaties that should form part of the constitutional system. This would prevent implicit, unintentional, and unwanted changes to the constitutional system.

B.
On Compliance of the Lisbon Treaty
With the Constitutional System

In particular, I consider it necessary to draw the Constitutional Court's attention to several fundamental issues.

1. Sovereignty

According to Article 1 of the Constitution, the Czech Republic is a sovereign country that adheres to its obligations arising from international law. It is possible to infer that this means sovereignty within the meaning of international law. Here, the Czech Republic has pronounced itself a full-fledged member of the international community and a full-fledged entity subject to international law.

International law is a consensual type of law. In contrast to national legal systems, its source is not an order in the most general sense of the word (a law, regulation, instruction, and so forth), but instead legal norms created by consensus or arising spontaneously (international treaties and international custom, respectively). Then, sovereignty should be understood as a quality where the entity is not, and cannot be, restricted by any norm created without its consent, expressed explicitly in the case of international treaties or implicitly in the case of international custom. An entity that is obliged to follow the instructions of another entity regardless or even contrary to its will is not sovereign, according to international law.

The Lisbon Treaty replaces consensual decision-making with decision-making based on voting in a number of areas. (Footnote 3) (Article 9c of the Treaty on the European Union as amended by Article 11 (17) of the Lisbon Treaty (i.e., Article 16 of the new consolidated wording of the Treaty on the European Union, renumbered on the basis of Article 5 of the Lisbon Treaty) and Article 205 of the Treaty on the Functioning of the European Union as amended by Article 2 (191) of the Lisbon Treaty (i.e., Article 238 of the new consolidated wording of the Treaty on the Functioning of the European Union (hitherto referred to as the Treaty on European Communities), renumbered on the basis of Article 5 of the Lisbon Treaty). Therefore, it may happen that the Czech Republic will be bound by a norm against the adoption of which it has openly spoken out. This even concerns the conclusion of certain international agreements by the European Union, that is, norms binding on the Czech Republic with respect to countries that are not members of the EU.

2. Direct Effect of EU Legislation

International law considers itself an exclusive system superior to the legal systems of individual countries, which is why, from its viewpoint, national legal systems are regarded merely as legal facts, rather than legal norms. (Footnote 4) ("From the viewpoint of international law and the Court of Justice, which is a body of this law, national laws, as well as court decisions and administrative measures, are merely facts, manifestations of the will of the states." (From the opinion of the Permanent Court of International Justice regarding Upper Silesia in Poland, 1926)). Therefore, it does not explicitly define the manner in which states should carry out their international legal obligations.

However, the Lisbon Treaty explicitly confirms that selected acts of the EU should have a direct effect in the legal systems of member states.

(Footnote 5) (Article 249 of the Treaty on the Functioning of the European Union, as amended by Article 2 (235) of the Lisbon Treaty (i.e., Article 288 of the new consolidated wording of the Treaty on the Functioning of the European Union (hitherto referred to as the Treaty on European Communities), renumbered on the basis of Article 5 of the Lisbon Treaty); see also page six of the presentation report to the Parliament of the Czech Republic (Assembly Print No 407, Senate Print No 181 in the current election periods). On the other hand, the Constitution of the Czech Republic states that international treaties that have been properly promulgated and approved by Parliament are directly binding. It is therefore possible to infer a contrario [preceding words in italics in Latin as published] that no foreign legislation other than the aforementioned international treaties may have a direct effect within the framework of the Czech legal system.

3. Unclear Character of the EU Charter of Rights

The provisions of the Lisbon Treaty concerning the protection of human rights and freedoms are also problematic. According to the Lisbon Treaty, the European Union is required to accede to the European Convention on the Protection of Human Rights and Fundamental Freedoms (agreed upon within the Council of Europe in 1950, which means that the EU has nothing in common with it for the time being) and, at the same time, it is required to recognize the rights, freedoms, and principles contained in the European Union's Charter of Fundamental Rights. Moreover, the latter charter is supposed to have the same legal authority as the treaties establishing the EU. (Footnote 6) (Article 6 of the Treaty on the European Union as amended by Article 1 (8) of the Lisbon Treaty (i.e., Article 6 of the new consolidated wording of the Treaty on the European Union, renumbered on the basis of Article 5 of the Lisbon Treaty)).

It is essential to find a binding answer to the question of what is the relationship between the Czech Charter of Fundamental Rights and Freedoms, which forms part of the constitutional system (Article 112 of the Constitution), and the EU Charter of Fundamental Rights. Does the EU Charter of Fundamental Rights also have the legal status of an international treaty as referred to in Article 10a of the Constitution and, on these grounds, does it take precedence over the Czech law? If the EU Charter of Fundamental Rights and Freedoms is an EU treaty according to Article 10 of the Constitution, do all of its provisions comply with the Czech Charter? I consider it a matter of course that they do not have the same authority as the Czech Charter or even taken precedence over it - this transpires from point A2 of this statement.

4. Transfer of Powers to the EU

According to Article 10a of the Constitution, certain powers of the bodies of the Czech Republic may be transferred to an international organization or institution.

What I consider essential is the word "international," from which it is clear that the powers of the bodies of the Czech Republic may only be transferred to an entity existing among states, rather than along with them or even above them.

4.1 The direct effect of the European Union legislation indicates that the EU legal system feels itself superior to the legal systems of member states and has emancipated itself with respect to international law as an independent system existing along with international law. However, it would correspond to international law if European law did not systematically prescribe to its members the ways in which they should fulfil the obligations that it has imposed on them (out of their joint will). By trying to pervade the legal systems of member states, European law views them as legal norms. On the other hand, it perceives international law as a set of legal facts.

4.2 The EU Charter of Rights is a useless document in itself. Member states have their own, usually much better prepared charters of rights. At the international level, human rights and freedoms are guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe and its Additional Protocols. It has been tested by history and, in particular, has a functional mechanism of court control available (in contrast to the EU Charter of Rights). This means that the EU Charter of Rights has a meaning only if the EU itself feels a state sui generis [preceding words in italics in Latin as published] or an emerging state of a federal type, which is subsequently bound by international law to observe and protect human rights.

That the EU will no longer be an international organization after the adoption of the Lisbon Treaty is also indicated by other facts that have not yet been mentioned:

4.3 Citizenship of the European Union was already introduced by the Treaty of Maastricht from 1991, but, at that time, it was not citizenship within the meaning of international law. The only thing that this term had in common with citizenship in the legal sense of the word was its name, and it only carried the "rights" that citizens of member states would have had even without it.

However, the Lisbon Treaty goes further and associates with EU citizenship additional rights for EU citizens, which only make sense in the context of the EU. For example, the Lisbon Treaty assigns the right of legislative initiative to a certain number of EU citizens, who, as a whole, however, must "come from a substantial number of member states." (Footnote 7) (Article 8b of the Treaty on the European Union as amended by Article 1 (12) of the Lisbon Treaty (i.e., Article 11 of the new consolidated wording of the Treaty on the European Union, renumbered on the basis of Article 5 of the Lisbon Treaty)). This means that the Lisbon Treaty already assumes a European civic society existing along with civic societies of the individual member states. Some kind of a European state nation is thus being created here.

4.4 The new division of competencies, or their "division" between the EU and member states, is typical of the distribution of competencies within a federal state. In particular, the division of powers belonging solely to the EU into residual powers belonging to member states and the opportunity for the EU to intervene in these powers as well based on the principles of proportionality and subsidiarity (Footnote 8) (Articles 3a and 3b of the Treaty on the European Union as amended by Article 1 (5) and (6) of the Lisbon Treaty (i.e., Articles 4 and 5 of the new consolidated wording of the Treaty on the European Union, renumbered on the basis of Article 5 of the Lisbon Treaty)) is not very different from the division of powers between the federation and the individual lands in the Federal Republic of Germany according to the Basic Law (which serves as the German Constitution). The only difference is that the Basic Law also defines the areas in which the Federation must not intervene and which must be regulated solely by the legislation of the individual lands. However, a definition of powers in which the EU would not be allowed to intervene in its member states is missing in the Lisbon Treaty. (Footnote 9) (Articles 70-72 of the Basic Law of the Federal Republic of Germany. (It is also not uninteresting that Article 24 of the Basic Law explicitly allows the Federal Republic of Germany to "transfer its sovereign rights to land authorities," while Article 10a of the Czech Constitution only allows the transfer of powers of the bodies of the Czech Republic; this is a fundamental difference.))

4.5 Until now, all decisions of the European Union were adopted by the EU Council or the European Council or were derived from them (the EU Commission prepares secondary legislation, the EU Parliament exercises its legislative functions together with the Council, and the European Court of Justice only interprets the so-called European law, but it does not create it de jure, no matter that its decisions often have a major impact). Members of the EU Council and the European Council are member states, which means that the result of their activities is merely a sum of the wills of member states. However, a completely new post of a chairperson of the European Council is now supposed to be established. At the same time, it is not very clear from the Lisbon Treaty, but it can be inferred that this chairperson will also have the right to vote on the European Council. (Footnote 10) (Article 9b of the Treaty on the European Union as amended by Article 1 (16) of the Lisbon Treaty (i.e., Article 15 of the new consolidated wording of the Treaty on the European Union, renumbered on the basis on Article 5 of the Lisbon Treaty) - according to its paragraph 2, the chairperson is a member of the European Council, whereas the high representative of the EU for foreign affairs and security policy only participates in its sessions, which means a contrario [preceding words in italics in Latin as published] that this representative is not a member; consequently, no provision prohibits the chairperson, as a member of the European Council, from voting on it.) This will then mean that the will of the European Union will no longer be merely a sum of the wills of member states, but instead a sum of the wills of member states and the individual who will hold the post of chairperson of the European Council at that moment. This person will, in fact, have the right of veto if the European Council decides on the basis of a consensus.

In view of the aforementioned facts, it is de jure absolutely insignificant that the Lisbon Treaty eventually does not codify European symbols - a flag, an anthem, and a motto. Symbols are not among the essential hallmarks of a state according to international law. They are also not exclusive symbols of states - associations and nongovernmental organizations of various kinds usually have their symbols as well. Moreover, European symbols have been in place for a long time and will certainly continue to exist on the basis of international custom, that is, the so-called secondary law of the EU. Therefore, it cannot be stated that the omission of symbols fundamentally distinguishes the Lisbon Treaty from the rejected draft European Constitution. The only difference between them is in their form: while the EU Constitution replaced the existing agreements, the Lisbon Treaty has a character of their amendment, thus making the so-called primary law of the EU even less transparent than it is now.

All this provokes major doubts about whether the European Union will remain an international organization or an institution within the meaning of Article 10a of the Constitution of the Czech Republic after the possible entry of the Lisbon Treaty into force or whether it will instead become an entity existing along with its members and aspire to even stand above them in the future. This gives rise to the question of whether Article 10a allows it at all to transfer any powers of the bodies of the Czech Republic to an entity that is transforming in this way.

C.
On the Methods of Ratification of the Lisbon Treaty

Although this cannot be subject to the proceedings concerning compliance of the content of the Lisbon Treaty with the Czech constitutional system, I consider it useful for the Constitutional Court to find a way to comment on the manner in which it is allowed to agree to the ratification of the Lisbon Treaty. According to Article 10 of the Constitution, ratification of an international agreement that transfers certain powers to an international organization or institution requires approval by Parliament; a constitutional law may stipulate that approval expressed in a referendum is required in a specific case.

According to Article 1 of Constitutional Act No 515/2002 Coll. on the Referendum on the Czech Republic's Accession to the European Union, amending Constitutional Act No 1/1993 Coll. - the Constitution of the Czech Republic, as amended by subsequent constitutional laws, it was possible to decide on the accession of the Czech Republic to the EU only by means of a referendum. The referendum question was directly tied with the so-called Accession Treaty, because its wording was as follows: "Do you agree that the Czech Republic becomes a member state of the European Union based on the treaty on accession of the Czech Republic to the European Union?" The Accession Treaty was obviously meant in the general sense of the word, as its complete official name is not referred to in the law and, in addition, a small "t" is used in the word "treaty." This apparently refers to any treaty determining the conditions of Czech membership in the European Union.

It transpires from the above that the Lisbon Treaty substantially changes the conditions of the Czech Republic's membership in the European Union stipulated in the Accession Treaty and changes the basic agreements regulating the functioning of the European Union, i.e., the treaties to which the Accession Treaty refers and that are thus de jure a part of it. This means that the Lisbon Treaty actually changes the Czech Accession Treaty as well. It is therefore legitimate to ask whether or not approval of ratification of the Lisbon Treaty should be subject to a referendum.

Summary of Questions

In view of the above, I consider it necessary that the Constitutional Court gives a clear answer to the following questions before the ratification of the Lisbon Treaty.

Question One:

Will the Czech Republic remain a sovereign country and a full-fledged entity of the international community, capable of adhering to the obligations arising for it from international law, even after the Lisbon Treaty enters into force?

Question Two:

Does the provision of the Lisbon Treaty concerning the internal effect of EU legislation comply with Article 10 of the Constitution of the Czech Republic?

Question Three:

Does the EU Charter of Fundamental Rights have the legal status of an international treaty according to Article 10a and/or Article 10 of the Constitution; if so, do all of its provisions comply with the Charter of Fundamental Rights and Freedoms of the Czech Republic and/or other parts of the constitutional system?

Question Four:

Will the European Union remain an international organization or institution to which Article 10a of the Constitution allows the transfer of powers of the bodies of the Czech Republic after the Lisbon Treaty enters into force?

Question Five:

If the Lisbon Treaty amends, albeit indirectly, the Accession Treaty, does Constitutional Act No 515/2002 Coll. on the Referendum on the Czech Republic's Accession to the European Union not implicitly apply to the Lisbon Treaty as well (if so, it would be necessary to amend, in particular, the referendum question)? Then, should the approval of the ratification of the Lisbon Treaty not be subject to a referendum as well?

Summary

As a legal participant in the proceedings before the Constitutional Court regarding the Petition of the Senate of the Parliament of the Czech Republic for an assessment of [compliance of] the Lisbon Treaty with the constitutional system, I consider a fundamental and comprehensive assessment of its content and implications by the Constitutional Court an absolutely essential prerequisite for its ratification.

The explanation of the Senate's petition and the content of my above statement give rise to absolutely evident indications that the Lisbon Treaty constitutes a fundamental change to the Czech constitutional system and the international position of the Czech Republic. I do not consider it possible that such fundamental changes to the international position and internal functioning of the Czech Republic, which the adoption of the Lisbon Treaty will undoubtedly bring about, are made unaware, without being clearly defined and understood and without a political and social consensus on them. The Constitutional Court, as the highest legal authority of our country, is required to provide to the political representation and general public a clear and comprehensive assessment of the Lisbon Treaty in all its respects in such a way that it is possible to adopt a responsible decision on its ratification clearly and with full awareness of its implications.

The Lisbon Treaty brings about a fundamental change to the character of the European Union and the legal status of the Czech Republic not only as its member state, but also as a sovereign country as such, something that it was until now and still is. Therefore, the Constitutional Court is facing an immense responsibility not only with respect to the present, but also the future of our country, the 90th anniversary of whose establishment we commemorate this year.